19-004318N Thapelo Lenkoane And Destinie Ray-Lenkoane, Individually And As Parents And Next Friends Of Dream Lenkoane, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, April 30, 2020.

Summary: NICA's unopposed motion for summary final order is granted where infant did not sustain a birth-related neurological injury.

Hearings (DOAH ) for a determination of compensability under the Florida

Birth - Related Neurological Injury Compensation Plan (Plan).

The Petition named Hector Ramirez , M.D., as the physician who provided

obstetric services at the birth of Dream o n February 14, 2018 , at Winnie

Palmer Hospital for Women and Babies (Winnie Palmer Hospital) located in Orange County , Florida.

DOAH served Hector Ramierz, M.D., and Winnie Palmer Hospital with

copies of the Petition on August 19, 2019. DOAH served NICA w ith a copy of

the Petition on August 19, 2019 . On September 9, 2019, Orlando Health, Inc.,

d/b/a Winnie Palmer Hospital, and Hector Ramirez, M.D., filed a Petition to

Intervene. On September 17, 2019, the undersigned entered an Order

Granting Intervenors , Orlando Health, Inc., d/b/a Winnie Palmer Hospital,

and Hector Ramirez, M.D. ’s , Petition to Intervene.

On February 12, 2020 , NICA filed a Response to Petition for Benefits,

asserting that Dream did not sustain a "birth - related neurological injury" as

that term is defined in section 766.302(2), Florida Statutes, and requested

that a hearing be scheduled to determine compensability. On March 11, 2020,

NICA filed a Status Update, which stated that it had conferred with counsel

for Petitioners and Intervenors, and further stated that the parties were in

agreement that a final hearing was not necessary. The Status Update further

stated that NICA would file a Motion for Summary Final Order for a

determination of Compensability.

On April 17, 2020, NICA filed an U nopposed Motion for Summary Final

Order, which noted, inter alia , that Petitioners and Intervenors do not oppose the Unopposed Motion for Summary Final Order and do not intend to rebut the opinions of NICA’s experts.

F INDINGS OF F ACT

1 . Dream was born on F ebruary 14, 2018 , at Winnie Palmer Hospital,

located in Orange County , Florida.

2. Donald Willis, M.D. (Dr. Willis) , was requested by NICA to review the

medical records for Dream . In a medical report dated October 8, 2019 ,

Dr. Willis summarized his find ings and opined , in pertinent part , as follows:

In summary, labor was induced at about 33 weeks

for preclampsia. FHR tracing during labor did not suggest any significant fetal distress. Delivery was

by Cesarean section. Umbilical cord blood gas pH

was with in normal limits at 7.12. There was no

seizure activity noted after delivery. No EEG or head imaging studies were done during the newborn hospital course.

The child suffered brain injury at some time prior to the MRI at 11 months of age, which was consist ent with encephalmalacia. However, the

brain injury does not appear to be birth related.

There was no apparent obstetrical event that resulted in oxygen deprivation or mechanical

trauma to the brain or spinal cord during labor,

deliver or the immediate po st - delivery period.

3. NICA retained Michael S. Duchowny , M.D. (Dr. Duchowny) , a Board -

certified ped iatric neurologist, to examine Dream and to review his medical

records. Dr. Duchowny examined Dream on November 26, 2019. In a medical

report dated Novembe r 27, 2019, Dr. Duchowny summarized his examination

of Dream and opined , in pertinent part , as follows:

In summary, Dream’s evaluation reveals findings

consistent with a substantial mental and motor impairment. Th e evidences spasticity and

hyperreflexia of all extremities , a profound delay in

motor milestones and absence of meaningful communication. He also has oromotor dysfunction and a borderline right exotropia.

Review of medical records forwarded on

November 12, 2019 reveal that Dream was the

2900 gra m product of a 34 week gestation

complicated by insulin - dependent gestational

diabetes, polyhydramnios, pregnancy - induced

hypertension and pre - eclampsia. He was delivered

by Caesarian section because of worsening pre -

eclampsia and non - reassuring fetal hear t tones.

Dream was a large - for - gestational - age neonate and

had Apgar scores of 6 and 7 at one and five

minutes. His neonatal course was prolonged

although he remained on CPAP for only one day.

A brain MR imaging performed on January 14, 2019 (age one mont h) revealed bilateral multifocal

cystic periventricular leukomalacia.

Given Dream’s relatively stable intrapartum and postnatal care, I would like to review Dream’s brain imaging before making a final recommendation regarding acceptance to the NICA progra m.

4. On F ebruary 14, 2020, Dr. Duchow ny provided an addendum to his

neurological evaluation of Dream, following the review of brain imaging

studies. Dr. Duchowny and Dr. Willis conferred regarding Dream’s medical

records and current neurological status a s well. In his Februar y 14, 2020 ,

addendum, Dr . Duchow ny opined:

It is our combined opinion that the findings on re -

review do not support the presumption that

Dream’s severe neurological outcome and MR imaging abnormalities were acquired in the course of l abor, deli very or the imm ediate post - natal

period as a result of either oxygen deprivation or

mechanical injury.

5. A review of the file in this case reveals that there have been no expert

opinions filed that are contrary to the opinion of Dr. W illis that there was no

apparent obstetrical event that resulted in loss of oxygen to Dream’s brain

during labor, delivery, and the post - delivery period , w hich resulted in brain

injury. Dr . Willis’ opinion is credited. There are no expert opinions filed that

are con trary to Dr. Duchowny’s opinion that Dream should not be considered

for inclusion in the NICA program. Dr . Duchow ny’s opinion is credited.

6. Dr. Willis reaffirmed his opinion in an affidavit dated April 17, 2020 .

Dr. Duchow ny r eaffirmed his opinion in an affidavit dated April 17, 2020.

C ONCLUSIONS OF L AW

7. DOAH has jurisdiction over the parties to and the subjec t matter of

these proceedings. §§ 766.301 - 766.316, Fla. Stat.

8. The Legislature established the Plan "for the purpose of providing

compensation , irrespective of fault, for birth - related neurological injury

claims" relating to births occurrin g on or after January 1, 1989. § 766.303(1),

Fla. Stat.

9. The injured infant, her or his personal representative, parents,

dependents, and next of kin may se ek compensation under the Plan by

filing a claim for compensation with DOAH. §§ 766.302(3), 766.303( 2),

and 766.305(1), Fla. Stat. NICA, which administers the Plan, has "45 days

from the date of service of a complete claim . . . in which to file a respon se to

the petition and to submit relevant written information relating to the issue

of whether the injury is a birth - related neurological injury." § 766.305(4), Fla.

Stat.

10. If NICA determines that the injury alleged in a claim is a compensable

birth - re lated neurological injury, it may award compensation to the claimant,

provided that the award is approved by the administrative law judge to

whom the claim has been assig ned. § 766.305(7), Fla. Stat. If, on the other

hand, NICA disputes the claim, as it ha s in the instant case, the dispute

must be resolved by the assigned administrative law judge in accordance with the provisions of chapter 120, Florida Statutes. §§ 766.304, 766.309,

and 766.31, Fla. Stat.

11. In discharging this responsibility, the admin istrative law judge must

make the following determination based upon the available evidence:

(a) Whether the injury claimed is a birt h - related

neurological injury. If the claimant has

demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury caused by

oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and

substantially mentally and physically impaired, a

rebuttable presumption shall arise that the injury is a birth - related neurological injury as defined in

s. 766.303(2).

(b) Whether obstetrical services were delivered by a

participating physician in the course of labor,

delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified

nurse midwife in a teaching hospital supervised by

a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.

§ 766.309(1), Fla. Stat. An award may be sustained only if the administrative

law judge concludes that the "infant has sustained a birth - related

neurological injury and that obstetrical services were delivered by a

participating physician at birth." § 766.31(1), Fla. Stat.

12. Section 766.302(2) defines t he t erm "birth - related neurological injury"

a s follows:

"Birth - related neurological injury" means injury to

the brain or spinal cord of a live infant weighing at

least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant w eighing

at least 2,000 grams at birth caused by oxygen

deprivation or mechanical injury occurring in the

course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired.

13. To be compensable under the NICA Plan, there must have been an

obstetrical event , which resulted in loss of oxygen to the baby’s brain during

labor, delivery, or resuscitation in the immediate post - delivery period

re sulting in a permanent and substantial mental impairment and a

permanent and substantial physical impairment, inasmuch as both are

required to establish compensability. Fla. Birth - Related Neurological Injury

Comp. Ass’n v. Div. of Admin. Hearings , 686 So. 2d 1349 (Fla. 1997).

14. The evidence, which is not refuted, established that Dream did not

suffer a birth - related neurological injury. Therefore, Dream is not eligible for

benefits under the Plan.

C ONCLUSION

Based on the Findings of Fact and the Conclusio ns of Law, it is O RDERED

that:

The Petition filed by Thapelo Lenkoane and Destinie Ray - Lenkoane,

individually and as parents and next friends of Dream Lenkoane , is

dismissed with prejudice.

D ONE A ND O RDERED this 30th day of April, 2020 , in Tallahassee, Le on

County, Florida.

R OBERT J. T ELFER III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of April, 2020 .

C OPIES F URNISHED :

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Pla ce

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 2280 0001 7689 4613 )

Allison C. McMillen, Esquire

McMillen Law Firm, P.A.

Suite 105

163 East Morse Boulevard

Winter Park, Florida 32789

(eServed)

(Certified No. 7019 2280 0001 7689 4606 )

Josep h P. Menello, Esquire

Wicker, Smith, O'Hara, McCoy and Ford, P.A.

Suite 1000

390 North Orange Avenue

Orlando, Florida 32801

(eServed)

(Certified No. 7019 2280 0001 7689 4699 )

Tana D. Storey, Esquire Rutledge Ecenia, P.A.

Suite 202

119 South Monroe Street

Tallahassee, Florida 32301

(eServed)

(Certified No. 7019 2280 0001 7689 )

Elizabeth A. Myers, Esquire

Smith Bigman Brock, P.A.

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified No. 7019 2280 0001 7689 4637 )

Amie Rice, Investiga tion Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified No. 7019 2280 0001 7689 4644 )

Mary C. Mayhew, Secretary

Health Quality Assurance

Agency for Health Care Administration

272 7 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 2280 0001 7689 4651 )

N OTICE O F R IGHT T O J UDICIAL R EVIEW

Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal purs uant to section 766.311(1), Florida Statutes.

Review proceedings are governed by the Florida Rules of Appellate

Procedure. Such proceedings are commenced by filing the original notice of

administrative appeal with the a gency c lerk of the Division of Admini strative

Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the

appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla.

Birth - Related Neurologic al Injury Comp. Ass'n v. Carreras , 598 So. 2d 299

(Fla. 1st DCA 1992).